Citation Nr: 0205856
Decision Date: 06/05/02 Archive Date: 06/13/02
DOCKET NO. 00-09 228A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to service connection for hypothyroidism, claimed
as the residual of exposure to ionizing radiation.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARINGS ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The veteran served on active duty from May 1971 to December
1972, a portion of which represented service in the Republic
of Korea.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a March 2000 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Huntington,
West Virginia.
FINDING OF FACT
Hypothyroidism is not shown to have been present in service,
or for many years thereafter, nor is it the result of any
incident or incidents of the veteran's period of active
military service, including exposure to ionizing radiation.
CONCLUSION OF LAW
Hypothyroidism was not incurred in or aggravated by active
military service, nor may such a disability be presumed to
have been so incurred. 38 U.S.C.A. § 1110 (West 1991 & Supp.
2001); 38 C.F.R. § 3.311 (2001).
REASONS AND BASES FOR FINDING AND CONCLUSION
During the pendency of this appeal, the standard for
processing claims for VA benefits was changed, effective
November 9, 2000, with the signing into law of the Veterans
Claims Assistance of Act of 2000 (VCAA). The VCAA removed
the requirement for a claimant to submit a well-grounded
claim and passed into law the VA's duty to assist claimants
in the development of their claims. The veteran was informed
of this change in the law and of VA's efforts to complete
their duties of assistance and notification to the veteran in
a December 2001 supplemental statement of the case. The
Board finds that the veteran has been fully informed of what
additional evidence and information is required with regard
to his claims. Since the veteran has not indicated that
there is any further relevant evidence available, there is no
reasonable possibility that any further assistance would aid
him in substantiating his claims. See Dela Cruz v. Principi,
15 Vet. App. 143 (2001).
Factual Background
Service medical records are negative for history, complaints,
or abnormal findings indicative of the presence of any
disorder of the thyroid gland. At the time of the veteran's
service separation examination in November 1972, evaluation
of his endocrine system was within normal limits, and no
pertinent diagnosis was noted.
During the course of private outpatient treatment in October
1990, the veteran complained of an enlarging right thyroid
nodule. Following physical examination, the clinical
impression was right thyroid nodule.
A private thyroid scan conducted in November 1990 was
consistent with enlargement of both lobes of the veteran's
thyroid (gland).
A private ultrasound examination of the veteran's thyroid
conducted in February 1998 was consistent with non-nodular
bilateral and diffuse enlargement of the thyroid gland, with
related areas of calcification within the gland. At the time
of private outpatient treatment in March 1998, there was
noted the presence of hypothyroidism.
In April 1998, following a private medical examination, the
clinical assessment was goiter with calcification.
The veteran continued to receive private medical evaluations
and treatment for goiter through 1998 and 1999.
A private operative report dated in May 1999 is to the effect
that the veteran at that time underwent a subtotal
thyroidectomy for colloid nodules.
In mid May 1999, a VA general medical examination was
accomplished. The veteran gave a history that, at one point
during his active service, he was given a 36-hour tour of
duty guarding missile warheads while they were being
disarmed. The pertinent diagnosis was status post subtotal
thyroidectomy due to goiter, with benign histopathology as
per the veteran.
In correspondence of early June 1999, the veteran's private
physician indicated that he (i.e., the veteran) did not have
Hashimoto's thyroid disease. However, he did have
hypothyroidism, which might have been exacerbated by
radiation exposure.
In correspondence from another of the veteran's private
physicians, likewise dated in early June 1999, it was noted
that the veteran had been suffering from a thyroid goiter,
which was removed in May of 1999. Reportedly, a biopsy done
at that time showed that the veteran did not suffer from
Hashimoto's thyroid disease, "as he was exposed to radiation
while he served as Military Police from May of 1971 to
December 1972." In the opinion of the veteran's physician,
his hypothyroidism "could have been exacerbated by the
radiation exposure."
The veteran continued to receive treatment for his thyroid
problems through VA and private health care providers in
1999. No mention was made in the records as to the etiology
of the thyroid disorder.
In correspondence of early February 2000, one of the
veteran's former service associates stated that, during the
period from October 1971 to December 1972, he had served as a
military policeman in South Korea. Reportedly, during that
period, he spent the majority of his time guarding nuclear
missiles with the veteran. According to the veteran's
friend, on one occasion, a missile was "knocked off" the
rails used to get the missile to the launcher. Following
this incident, a crew in radiation suits was brought in to
check the area. According to the veteran's friend, they were
not informed regarding any damage to the missile. The
veteran's friend further indicated that the veteran was in a
guard tower overlooking the missiles at the time of the
incident in question.
In correspondence of February 2000, the U.S. Army Radiation
Standards and Dosimetry Laboratory indicated that, following
a search of their files, they were unable to locate any
records of the veteran's exposure to ionizing radiation.
In correspondence of late February 2000, the veteran's
private physician indicated that the veteran's thyroid scan
had revealed the lateral borders of both (thyroid) lobes to
be photopenic, suggestive of decreased uptake in the cold
area. Reportedly, the veteran's final pathology report
following surgery revealed a multinodular colloid goiter.
In correspondence of May 2000, another of the veteran's
private physicians stated that she had treated the veteran
for a diffuse thyroid goiter (nonmalignant thyroid nodular
disease). Additionally noted was that the veteran had no
family history of thyroid disease. Rather, at age 19, he was
reportedly exposed to ionizing radiating while serving in
Korea. In the opinion of the veteran's physician, the
veteran's hypothyroidism "could" have been exacerbated by
radiation exposure.
During the course of an RO hearing in July 2000, the veteran
offered testimony regarding his exposure to ionizing
radiation in service. Reportedly, on one occasion during the
veteran's period of service in Korea, a maintenance crew
performing a routine inspection pushed a missile "off its
runners" onto the ground. Following this incident, the
maintenance crew came back wearing "radiation or space
suits," at which point they began working to disarm the
missile. According to the veteran, while this disarmament
was taking place, he was on tower duty approximately 60 feet
above the missile. See Transcript, pp. 1-2.
In correspondence received in December 2000, the veteran's
spouse stated that, "sometime around 1978 or 1979," a lump
was found in the veteran's neck, following which he underwent
evaluation of his thyroid gland. According to the veteran's
spouse, the veteran was told at that time that his thyroid
problem was "inactive," so he didn't go back (to the doctor).
In May 2001, a request was made of the Military Operations
Archives of the National Personnel Records Center (NPRC) for
information regarding the incident described by the veteran
where a missile reportedly fell off of railroad tracks used
to load it.
In a Report of Contact dated in October 2001, the NPRC
responded that they did not maintain Nike Missile Site
records, and they were unaware of any one who might keep such
reports.
During the course of a videoconference hearing before the
undersigned member of the Board in March 2002, the veteran
reiterated various details regarding the incident in Korea
where a nuclear-tipped missile reportedly "fell off a rail,"
and was damaged. According to the veteran, at the time of
that incident, he was not told that there was any "potential
for radiation exposure." See Transcript, p.7.
Analysis
The veteran in this case seeks service connection for
hypothyroidism. In pertinent part, it is argued that the
subtotal thyroidectomy which resulted in the veteran's
current hypothyroidism, was the result of an incident in
service, at which time a Nike missile was accidentally
dislodged from its tracks, exposing the veteran to ionizing
radiation.
In that regard, service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131 (West 1991 & Supp. 2001). Moreover, where a veteran was
exposed to ionizing radiation as a result of participation in
certain activities, and a radiogenic disease, such as
nonmalignant thyroid nodular disease, becomes manifest more
than five years after the exposure in question, service
connection may be granted for that disease/disability.
38 C.F.R. § 3.311 (2001).
Finally, service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. Presumptive periods are not intended to
limit service connection to diseases so diagnosed when the
evidence warrants direct service connection. 38 C.F.R.
§ 3.303(d) (2001).
In the present case, service medical records, including the
veteran's service separation examination, are negative for
history, complaints, or abnormal findings indicative of the
presence of a thyroid disorder. The earliest clinical
indication of the potential presence of thyroid disease is
revealed by various records dated in 1990, approximately 18
years following the veteran's discharge from service. Not
until 1998, fully 26 years following the veteran's service
separation, was there discovered the multinodular goiter
which resulted in the veteran's May 1999 subtotal
thyroidectomy.
The Board acknowledges certain statements by the veteran's
private physicians to the effect that his thyroid disease
"could" have in some way been related to exposure to
ionizing radiation in the Republic of Korea. However, as is
clear from the above, the record is devoid of evidence of any
such exposure. Moreover, the aforementioned statements by
the veteran's private physicians appear to have been based
solely on history provided by the veteran, without access to
the veteran's service medical records. See LeShore v. Brown,
8 Vet. App. 406 (1995).
Even assuming, for the sake of argument, that the incident in
question did occur, there exists no evidence that, as a
result of that incident, the veteran experienced any exposure
whatsoever to ionizing radiation. Inquiries by VA to the
NPRC and the Department of the Army yielded no information
that would verify the exposure claimed by the veteran. In
point of fact, during the course of a hearing before the
undersigned member of the Board in March 2002, the veteran
himself testified that, at the time to the aforementioned
incident, he was given no indication of any potential for
radiation exposure.
The veteran argues that his exposure to ionizing radiation
was, in fact, the precipitating factor in the development of
thyroid disease leading to hypothyroidism. However, as noted
above, there exists no evidence that the veteran, while in
service, suffered such exposure. Absent a showing that the
veteran actually suffered exposure to ionizing radiation in
service, his claim must fail. See Combee v. Brown, 34 F.3rd
1039 (1994).
ORDER
Service connection for hypothyroidism, claimed as the
residual of exposure to ionizing radiation, is denied.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.